Category Archives: Workers’ Compensation

Are You Really an Independent Contractor?

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“Calling a dog’s tail a leg does not make it a leg.” Abraham Lincoln

FedEx drivers recently won two class-action lawsuits in the 9th Circuit Court of Appeals. The court ruled that FedEx wrongfully withheld overtime pay, Social Security, unemployment, Medicare and other benefits to drivers because they were misclassified as independent contractors rather than employees. The decisions were driven by the fact that FedEx exercised control over the appearance of drivers as well as what packages to deliver, on what days, and at what times.

Though the FedEx decision only applies to Oregon and California, it is very possible that a similar decision would have been made under Nebraska law. Under the Nebraska Wage Payment and Collection Act as well as under the Employment Security Law, Neb. Rev. Stat. 48-601 et al., there is a five-part test as to whether a worker is an independent contractor or employee.

  1. Individual is free from control or direction under contract of hire
  2. Individual is free from control or direction as a matter of fact
  3. Service is outside the usual course of business for which service is performed
  4. Such service is performed outside of all the places of business of the enterprise which such service is performed
  5. Individual is customarily engaged in an independently established trade, business or profession.

Nebraska law creates a presumption of an employer-employee relationship. Tracy v. Tracy, 581 N.W. 2d 96, 7 Neb. App. 143 (Neb. Court of Appeals, 1998) In short, if you can answer most of those questions “no,” you are very likely an employee rather than an independent contractor. The mere fact that you may have signed a documents stating you are independent contractor does not necessarily mean you are an independent contractor.

In addition to protections under federal law, asking questions about your employment status is also a protected activity under Nebraska law. Being misclassified as an independent contractor could cost you thousands of dollars in wages and benefits. However, you have the ability to fight back if you are being misclassified.

Offices Closed for Labor Day on Friday, Monday

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Labor Day

Please be safe, and have a happy Labor Day weekend.

The firm’s offices will be closed on Friday, Aug. 29, and Monday, Sept. 1, for the Labor Day holiday. We will be open on Tuesday, Sept. 2, at 8:30 a.m. 

May your 2014 Labor Day celebration be thoughtful, fun and safe. Here’s a past blog post that I wrote about Labor Day, and the main points remain much more poignant, as 2014 is an election year, and as I’ve been writing in recent blog posts, workers, whether injured or not, are greatly affected by those who are elected. Because keep in mind that many workers’ protections are being eroded by business in pursuit of profit, and nonunionized workers generally fare worse than those who belong to unions.

So as you go about your business – whether marching in a Labor Day parade, traveling safely through the last weekend of summer, enjoying quiet time at home, or even providing for your family by working – think about your life situation and reflect on those workers who have gone before to provide a better quality of life for workers today, regardless of individual job situation. I know I will do just that.

Happy Labor Day! What are your plans? And why do we have this day off of work? Is it to celebrate summer ending and school starting? In Nebraska, it might be to celebrate what is often the first weekend of Husker football and the last weekend of the State Fair.

But are there other reasons? Just like the origins of workers’ compensation, we can attribute the fact that we have a holiday to the American worker.

Labor Day – the first Monday in September – celebrates the contributions workers have made to the strength, prosperity, and well-being of America,” according to www.usa.gov.

Sources explain in varying amounts of detail the controversy over who founded Labor Day and how the “workingmen’s holiday” was celebrated on that day. But what isn’t up for debate is that unions and their workers were a very important part of developing Labor Day to celebrate workers’ contributions.

I am pleased to share that the state of Nebraska was actually one of the first to celebrate Labor Day and had passed legislation recognizing the holiday by 1890. Other states that were Labor Day pioneers included Oregon, Colorado, Massachusetts, New Jersey, New York, Connecticut, and Pennsylvania.

There are some romantic notions about how Labor Day came into being, and some sources even gloss over some of the gritty details, but Continue reading

Attorney Brody Ockander Presents at Translators’ Conference

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Attorney Brody Ockander

Firm associate Brody Ockander recently served as a presenter at the Nebraska Association for Translators and Interpreters (NATI) 2014 Annual Regional Conference in Omaha.

His presentation included information on both civil litigation and workers’ compensation.

“Many of the interpreters I spoke with are interpreters for various Nebraska courts,” Ockander said. “Therefore, it is helpful for these interpreters to have at least some background knowledge about how the civil court and workers’ compensation systems work in order to ensure the best possible interpretation for all parties. For non-English speaking persons, equal access to justice hinges on whether the interpreter does a good job.”

As part of its conference, the NATI also served as host to the American Translators Association (ATA) certification exam.

The firm’s attorneys need access to translators for the many languages that our clients speak, so it is helpful that Ockander was able to interact with this group and serve as a resource for their conference. I encourage the firm’s attorneys and staff to participate in continuing education and networking opportunities through professional associations and other occasions, taking the occasion to serve as both presenters and lifelong learners.

Thank you to Ockander for representing the firm as a presenter at this conference.

Why Your Vote Matters to Workers

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I frequently write about the intersection of workers’ compensation benefits for workers and politics. The bottom line on my comments is that workers, and citizens who care about workers, need to vote for candidates who will protect workers’ rights. These comments arise from a now quarter-century attack on workers’ compensation benefits by big business and insurance interests. Their power is almost incomprehensible in terms of the money they will spend to take away or limit benefits.

Recently, a Florida court found that the limiting of workers’ benefits in Florida has destroyed the “social bargain” that led to the creation of workers’ compensation. Workers’ compensation laws are slightly more than 100 years old. The notion of a bargain is workers got fast and fair benefits in exchange for giving up their right to full compensation. There have been a lot of discussions since the big business/insurance attack on worker benefits that the bargain is no longer fair.

The Florida court also found the exclusive-remedy rule unconstitutional. The exclusive-remedy rule deprives injured workers and their families of benefits for pain, suffering and non-occupational disability. I have also represented a client in Nebraska where the exclusive-remedy rule was limited by a court.

Big business and big insurance will not back down. They won’t let up. As I write this blog, billions of dollars are being poured into political campaigns by the Koch Industries, TD Ameritrade and scores of others to support candidates who want to reduce and eliminate workers’ benefits.

Workers, their families, and everyone else who cares about ordinary human beings must not let these wealthy interests buy elections. We must stand up and vote. We must inform ordinary human citizens that the corporate citizens are taking away our rights as fast as they can. This is a crucial election, and every election will be crucial until people stand up and convince the mega wealthy that they can’t buy elections any longer.

When Did My Workers’ Compensation ‘Accident’ Occur?

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Nebraska workers’ compensation law states that an accident is “an unexpected or unforeseen injury happening suddenly and violently, with or without human fault, and producing at the time objective symptoms of an injury.” Neb. Rev. Stat. §48-151(2). In our practice, we are often faced with a situation where an injured worker is unable to answer the question: “When did the accident occur?” Often, this is because they don’t even realize they have experienced what Nebraska workers’ compensation law considers to be an “accident.” The plain, ordinary and popular understanding of what “suddenly and violently” means in the English language doesn’t seem to fit with this situation. This is because the injury resulted from repetitive trauma – i.e. an overuse injury – and the worker is unable to point to a particular point in time when an “accident” occurred. They didn’t slip and fall, nothing fell on their foot, they weren’t in a car accident, etc. It just started hurting and affecting how well they could do their job then finally got so bad that they had to seek medical treatment.  The Nebraska Supreme Court recently addressed this issue, and, in the process, reaffirmed and explained Nebraska’s rule for determining when a repetitive trauma injury happened. 

In Nebraska, the phrase “suddenly and violently” means only that the injury manifested at an identifiable point in time. The rule for the last 15 years or so has been that the “identifiable point in time” is essentially when an employee discontinues employment and seeks medical attention. What this means in simpler terms is that the date of accident is whenever an injury got so bad an injured worker had to take off work to go to the doctor. The Supreme Court reaffirmed this rule for a number of reasons, including how simple it is to determine the date of accident, based on this objective criteria. The Court also found that it just makes sense to say that an employee has really experienced a decrease in their employability or earning capacity, and therefore experienced a disability, when they have to take time off work to go to the doctor.   

Why is it important to know the date of accident in a repetitive-trauma case? It is important for a number of reasons, and you should seek the advice of an experienced workers’ compensation attorney for more information and/or assistance with your case. Particularly for injured workers, it is important because it is relevant to when the statute of limitations on the case begins to run. These injuries often start developing years before they get so bad that the worker must take time off to go to the doctor. This fact may discourage injured workers from reporting or pursuing workers’ compensation claims because they think it is too late. It is always important to understand whether your claim is barred by the statute of limitations or not, but knowing when the accident occurred is the first step in that determination. It is also important because the maximum benefit rates available to injured workers for temporary and permanent indemnity benefits are based on what year the accident occurred and change from year to year. Finally, it is important because people change jobs, and companies change ownership. Regardless of how long an injury took to develop, and how many different employers an injured worker performed work for, Nebraska law states that the employer who employed that worker on the date of accident, and their insurance company, is liable to that worker.

Ladder Accidents on the Rise

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Today’s post comes from guest author Kristina Brown Thompson from The Jernigan Law Firm in North Carolina.

What kinds of tools do you have at home that you could use some training for or may not actually know how to use but use anyway?

The United States definitely has a do-it-yourself culture. There’s even an acronym for it: DIY. However, just because a person can do it themselves doesn’t mean it’s a good or safe idea. Sometimes it’s easier and safer to hire someone who’s trained for a home-improvement or maintenance project. After all, it’s their job to complete a project safely.

If you do choose to do-it-yourself, take your safety focus and training home with you. As is mentioned in the article below, make sure you have the equipment, skills and training to do the job safely and correctly.

When my husband and I purchased our home, we immediately bought a forty-foot ladder because obviously we would be cleaning our own gutters and needed the biggest ladder possible to reach the roof. Our first attempt to use the ladder was miserable. We could barely lift the ladder. After a few pathetic attempts to use the ladder, we realized this was a stupid idea and outsourced the job to professionals. Looking back now, it was crazy to even consider using the ladder given the sloped terrain of our yard and given the height of the home. 

According to the American Journal of Preventive Medicine, ladder accidents are on the rise in the United States. From 1990 to 2005, reported ladder accidents increased fifty percent (50%). That’s over two million people, or 136,000 people a year, treated for injuries sustained while on a ladder. Despite the risk of using a ladder, it seems that many still do not follow common safety precautions. The four main problems are: (1) selecting the wrong type of ladder, (2) using old or damaged ladders, (3) incorrect use of ladders, and (4) incorrect placement of ladders.

In my situation, we were likely using the wrong ladder, incorrectly, and certainly did not have it correctly placed. We’re lucky we didn’t end up in the ER. Ladders need to be treated like any dangerous tool. OSHA recommends significant training before allowing employees to use ladders. According to the Bureau of Labor Statistics, fifty percent (50%) of all ladder-related accidents were due to individuals carrying items as they climbed.  To avoid a potentially life-changing injury, encourage your friends and family to practice ladder safety. Avoid using a ladder alone, and always make sure you are using the correct ladder and have it set up properly.

 

What’s an IME (Independent Medical Examination)?

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My employer just set me up for a “second opinion” or IME with another doctor. What is that?

An IME is an abbreviation for an independent medical examination. The purpose of an IME is seeking a second opinion from a non-treating doctor for your work injury in order to obtain an opinion on pretty much anything regarding your workers’ compensation injury: medical causation, diagnosis, treatment, restrictions, impairment, etc. The IME doctor, however, does not actually provide any treatment him/herself. The IME doctor merely dictates a report with his/her evaluation, opinions, and recommendations.

An IME can be requested by the plaintiff or defendant in a workers’ compensation claim. Although “independent” is in the name, oftentimes these exams are not independent at all. In fact, there are three different types of IMEs in Nebraska, and not all would be considered “independent.”

  1. An IME may be requested by plaintiff. In this scenario, the injured worker can choose his/her own doctor with the cost paid by that worker or that worker’s lawyer; 
  2. An IME may be requested by both parties. If there is a medical dispute, the parties can agree to an IME doctor, or have the court appoint an IME doctor, the cost of which is borne by the employer or insurance company; and
  3. An IME may be requested by defendant. The employer or insurance company may choose its own doctor much like the worker can choose a doctor. The cost of this IME is borne by the employer.

Injured workers must be cautious of both #2 and #3 above. In #2, the IME opinion may be binding on both parties at trial if the doctor was agreed to by the parties. Without proper knowledge of the doctor involved, the injured worker may not know that a particular doctor is employer-friendly and is not likely to provide the worker with a favorable opinion.

Under #3, the injured worker must also be cautious. The worker cannot outright refuse to attend an IME, so the worker needs to be on his/her toes with the doctor, because the doctors hired by the insurance companies will go to great lengths to please the insurance companies that pay them big bucks for these IMEs (to the detriment of the worker). Sometimes that can mean denying further treatment for an injury or stating that a worker is “malingering” – or faking – an injury just because a worker didn’t look like he was hurt when he was getting out of his car in the parking lot. In other words, be warned that the doctor is always watching you during these IMEs.

Other advice that I give my clients before going to an IME is to be honest about all prior injuries, because the IME doctor will probably know more about your medical history than you. Be professional at the appointment and non-confrontational. Finally, bring a friend or family member with you to the IME. This can keep the IME doctor more honest hopefully, and can give the worker an additional “witness” about the examination when it comes time for trial.

Probably the best advice for anyone being sent to an IME is to contact a lawyer immediately. Chances are very good that your claim will be denied once you have been sent to an IME, and the sooner you contact a lawyer at that point, the better.

 

Truckers Fired Over Workers’ Comp Claim: What to Do Next

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Truck drivers have a remedy if fired for making a workers’ compensation claim.

A recent award of over $100,000 to a truck driver who was fired for making a workers’ compensation claim illustrated the protection drivers have under the Surface Transportation Assistance Act (STAA). New Prime of Springfield, Mo., had to pay the former employee lost wages, compensatory and punitive damages. “The company must also expunge the complainant’s employment and DAC Report records of any reference to his unlawful termination,” according to the article above. 

The Occupational Safety and Health Administration (OSHA), which is often criticized for a variety of reasons, enforced anti-retaliation laws that protect truck drivers who are unfairly punished for taking steps to protect their health and financial welfare. These laws can also be enforced through lawsuits as an alternative to the OSHA administrative process. 

Truck drivers need to be aware of this protection. Truck drivers also need to know that OSHA and the Federal Motor Carrier Safety Administration (FMCSA) have just announced an agreement to strengthen protections for transportation workers from coercion and retaliation.   

The industry publication FleetOwner gives more details about how OSHA and the FMCSA interact with the STAA in this article.   

Here is one helpful quote from the FleetOwner article:

“If OSHA finds that a complaint is valid, it can order the employer to reinstate the worker; pay back pay, interest and compensatory damages; pay punitive damages up to $250,000 where warranted; and/or take other remedial actions.”

In addition, “action by one agency didn’t preclude action by another in the same situation” when it comes to the STAA.

“OSHA’s mandate is protecting workers, while FMCSA’s mandate is safety, (an FMCSA document) said. And FMCSA can take action against a carrier or other entity but, unlike OSHA, it can’t compensate a driver. So a driver filing a complaint with FMCSA about coercion might be able to file a whistleblower protection complaint with OSHA and vice versa, FMCSA said.”

The recent award and very recent press release from OSHA are great news for truckers and their families. The laws that protect you work. There is an apparently serious effort to make them work better. It will now be easier to protect your health and welfare if you are injured on the job.